IMAGE  EVALUATION 
TEST  TARGET  (MT-3) 


1.0 


I.I 


1.25 


|50     '"■^ 
40 


12.5 
12.2 

U    III  1.6 


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Photographic 

Sdences 

Corporation 


23  WEST  MAIN  STREET 

WEBSTER,  NY.  14580 

(716)  872-4503 


v^'    ^ 


:\ 


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'^^*.  '^*'5?  '^^ 


CiHM/ICMH 

Microfiche 

Series. 


CmiVI/iCIVIH 
Collection  de 
microfiches. 


Canadian  Institute  for  Historical  IVIicroreproductions  /  Institut  Canadian  de  microreproductions  historiquas 


^ 


:\ 


\ 


'«s. 


►  *S' 


^^^^ 


Technical  and  Bibliographic  Notas/Notas  tachniquas  at  bibliographiquaa 


Tha  Instjtuta  has  attamptad  to  obtain  tha  bast 
original  copy  availabia  for  filming.  Faaturas  of  this 
copy  which  may  ba  bibiiographically  uniqua, 
which  may  altar  any  of  tha  imagas  in  tha 
raproduction,  or  which  may  significantly  changa 
tha  usual  mathod  of  filming,  ara  chackad  balow. 


n 


n 


□ 


0 
n 


D 


D 


Colourad  covars/ 
Couvartura  da  coulaur 


r~1    Covars  damaged/ 


Couverture  endommag^e 


Covers  restored  and/or  laminated/ 
Couverture  restaur^  st/ou  pellicultie 


!      I    Cover  title  missing/ 


Le  titre  de  couverture  manque 


□    Coloured  maps/ 
Cartes  giographiquas  en  couleur 


Coloured  ink  (i.e.  other  than  blue  or  black!/ 
Encre  da  coulaur  (i.e.  autre  que  bleue  ou  noire) 


I      I    Coloured  plates  and/or  illustrations/ 


Planches  ot/ou  illustrations  en  couleur 


Bound  with  other  material/ 
ReliA  avec  d'autres  documents 

Tight  binding  may  cause  shadows  or  distortion 
aiong  interior  margin/ 

Lareliure  serr^e  peut  causer  de  I'o.nbra  ou  de  la 
distorsion  l«  long  de  la  marge  int^riaure 

Blank  leaves  added  during  restoration  may 
appear  within  the  text.  Whenever  possible,  these 
have  been  omitted  from  filming/ 
II  se  peut  que  certaines  peges  blanches  ajouties 
lors  d'une  restauration  apparaissent  dans  le  texte, 
mais,  lorsque  cela  itait  possible,  ces  pages  n'ont 
pas  iti  film^as. 


Additional  comments:/ 
Commentnires  supplimentaires: 


L'lnstitut  a  microfilm^  le  meilleur  exemplaire 
qu'il  lui  a  M  possible  de  se  procurer.  Les  details 
de  cet  exemplaire  qui  sont  peut-itre  uniques  du 
point  de  vue  bibliographique,  qui  peuvent  modifier 
une  image  reproduite,  ou  qui  peuvent  exiger  une 
modification  dans  la  mithode  normale  di!i  filmage 
sont  indiquis  ci-dessous. 


r~n    Coloured  pages/ 


1/ 


D 


Pages  do  couleur 

Pages  damaged/ 
Pages  endommagias 

Pages  restored  and/oi 

Pages  restaurias  et/ou  pelliculdes 

Pages  discoloured,  stained  or  foxet 
Pages  dicolorAes,  tachet^es  ou  piquees 


[~~|    Pages  damaged/ 

I      I    Pages  restored  and/or  laminated/ 

I     1    Pages  discoloured,  stained  or  foxed/ 


□Pages  detached/ 
Pages  ditachees 


Showthrough/ 
Transparence 


r^n    Quality  of  print  varies/ 


Qualiti  in^gale  de  I'impression 

Includes  supplementary  material/ 
Comprend  du  material  suppl^mentaire 

Only  edition  available/ 
Seule  Mition  disponible 


Pages  wholly  or  partially  obscured  by  errata 
slips,  tissues,  etc.,  have  been  refilmed  to 
ensure  the  best  possible  image/ 
Les  pages  totalement  ou  partiellement 
obscurcies  par  un  feuillet  d'errata,  une  peiure, 
etc..  ont  M  filmies  i  nouveau  de  facon  i 
obtenir  ia  meilleure  image  possible. 


This  item  is  filmed  at  the  reduction  ratio  checked  below/ 

Ce  document  est  filmi  au  taux  de  rMuction  indiqui  ci-dessous. 

10X  14X  18X  22X 


26X 


30X 


y 


12X 


16X 


20X 


24X 


28X 


n 

32X 


Th«  copy  filmad  h«r«  has  b—n  r«produc«d  thanks 
to  th«  ganarosity  of: 

Ligiilature  du  QuAbec 
Quebec 


L'axamplaira  filmi  fut  raproduit  gricc  k  la 
gAnirositA  da: 

L^itlatuie  du  Quebec 
Quebec 


Tha  imagaa  appaaring  hara  ara  tha  baat  quaiity 
possibia  considaring  tha  condition  and  lagibiiity 
of  tha  originai  copy  and  In  Itaaping  with  tha 
filming  contract  spacifications. 


Laa  imagaa  suivantaa  ont  AtA  raproduitas  avac  la 
plus  grand  soin.  compta  tanu  da  la  condition  at 
da  la  nattati  da  l'axamplaira  film*,  at  an 
conformity  avac  laa  conditions  du  contrat  da 
filmaga. 


Original  copiaa  in  printad  papar  eovara  ara  fiimad 
baginning  with  tha  front  eovar  and  anding  on 
tha  last  paga  with  a  printad  or  iilustratad  impraa- 
sion,  or  tha  bacic  covar  whan  appropriata.  All 
othar  original  copias  ara  fiimad  baginning  on  tha 
first  paga  with  3  printad  or  iilustratad  impras- 
sion,  and  anding  on  tha  last  paga  with  a  printad 
or  iliuatratad  imprassion. 


Laa  axampiairaa  originaux  dont  la  couvartura  an 
papiar  aat  imprimAa  sent  fiimte  an  commandant 
par  la  pramiar  plat  at  an  tarminant  soit  par  la 
darniAra  paga  qui  comporta  una  amprainta 
d'imprassion  ou  d'illustration,  soit  par  la  sacond 
plat,  saion  la  caa.  Tous  laa  autras  axampiairaa 
originaux  sont  fiimto  an  commandant  par  la 
pramlAra  paga  qui  comporta  una  amprainta 
d'imprassion  ou  d'illustration  at  an  tarminant  par 
la  darnlAra  paga  qui  comporta  una  talla 
amprainta. 


Tha  last  racordad  frama  on  aach  microficha 
shall  contain  tha  symbol  —»•(  moaning  "CON- 
TINUED"), or  tha  symbol  ▼  (moaning  "END"), 
whichavar  appiiaa. 


Un  das  symbolaa  suh/ants  apparaltra  sur  la 
darniAra  imaga  da  chaqua  microficha,  salon  la 
cas:  la  tymbola  — »•  signifia  "A  SUiVRE",  la 
symbols  ▼  signifia  "FIN". 


Maps,  platas,  charts,  ate,  may  ba  fiimad  at 
diffarant  raduction  ratios.  Thosa  too  laf  ga  to  ba 
antiraly  inciudad  In  ona  axposura  ara  fiimad 
baginn'ng  in  tha  uppar  laft  hand  cornar,  iaft  to 
right  and  top  to  bottom,  as  many  framaa  as 
raquirad.  Tha  following  diagrama  iiluatrata  tha 
mathod: 


Las  cartaa,  planchas.  tablaaux,  ate,  pauvant  Atra 
filmte  i  daa  taux  da  rMustion  ciiffirants. 
Lorsqua  la  documant  ast  trop  grand  pour  Atra 
raproduit  an  un  saui  ciichA,  ii  ast  film*  A  partir 
da  I'angia  aupAriaur  gaucha,  da  gaucha  h  droita, 
at  da  haut  an  baa,  an  pranant  la  nombra 
d'imiigas  nteassaira.  Las  diagrammas  suivants 
iilustrant  la  m^thoda. 


1 

2 

3 

1 

2 

3 

4 

5 

6 

T 


OPINION 


or 


ti  f 


I 

ii 

■V 


TI-IE  ATTORNEY   GENERAL 


CONCERNINO 


If 


BRITISH  rl:cruitment 


IV    THK 


UNITED    STATES 


•  i 


WASHINGTON: 

A.  O.  p.  NICHOLSON,  PUBLIC  PRINTER. 

1856. 


Executive  JIansion, 

Washiiif/ton,  Arif/ust  G,  1855. 
The  reports  of  the  district  attorneys  of  tlie  southern  district 
of  New  York  and  the  eastern  district  of  Pennsylvania,  on 
the  subject  of  the  levy  of  troops  in  tlie  United  States  by 
official  or  other  agents  of  Great  Britain,  are  returned  liere- 
Avith  to  the  Attorney  General,  and  his  opinion  is  re([uired 
upon  the  question,  Avhether  or  not  the  acts  reported  are  in 
violation  of  the  municipal  law  and  of  the  national  sov- 
ereignty and  neutiality  ;  and  especially  upon  the  question, 
what  legal  responsibility,  if  any,  those  acts  devolve  on  tlie 
British  minister  and  British  consuls. 

FRANKLIN  PIERCE. 


OPINION. 


Attorney  General's  Office, 
Axujust  y,  1855. 

Sir:  I  huvo  the  lionor  to  snlimit  herewith  the  con- 
siderations of  hiw  applicable  to  the  enlistment  of  troops 
within  the  United  States  by  the  British  government, 
in  so  tar  as  the  facts  appearing  in  documents  before 
me  concern  the  personal  action  either  of  the  British 
minister  or  of  the  British  consuls  in  the  United  States. 

There  is  no  room  for  doubt  as  to  the  law  reffardinjr 
the  general  question. 

In  the  first  place,  the  act  of  Congress  of  April  20th, 
1818,  contains  the  following  provision: 

"Sec,  2.  And  he  it  further  enacted^  That  if  any  per- 
son shall,  within  the  territory  or  ju.'isdiction  of  the 
United  States,  enlist  or  enter  himself,  or  hire  or 
retain  another  person  to  enlist  or  enter  himself,  or  to 
go  beyond  the  limits  or  jurisdiction  of  the  United 
States  with  intent  to  be  enlisted  or  entered,  into  the 
service  of  any  foreign  prince,  state,  colony,  district,  or 
people,  as  a  soldier,  or  as  a  marine  or  seaman  on  board 
of  any  vessel  of  w^r,  letter  of  marque,  or  privateer, 
every  person  so  offending  shall  be  deemed  guilty  of  a 
higii  misdemeanor,  and  shall  be  fined  not  exceedin"- 
one  thousand  dollars,  and  be  imprisoned  not  exceeding 
three  years."     (iii  Stat,  at  Large,  p.  448.) 

Of  course,  as  the  levy  of  troops  within  the  United 
Stated  for  foreign  service  is  forbidden  by  law,  no 
such  right  has,  by  your  permission,  been  given  to 
(ireat    Britain.     To   the  contrary  of  this,  the   British 


1 

li 


government  was  expressly  notified,  by  letter  of  Mr. 
.Alarcy  to  Mr.  Crampton  of  April  28tli,  1854,  that  no 
enlistments  in  the  United  States  would  be  permitted 
either  to  Great  iJritain  or  to  Russia.  (E.\.  Doc  1st 
session  33d  Congress,  vol.  xii,  No.  103,  }>.  5.) 

In  the  second  place,  independently  of  the  municipal 
relations  of  the  acts  in  question,  they  constitute, 
whether  they  be  the  acts  of  the  British  government  or 
of  its  minister  and  consuls,  a  violation  of  the  sove- 
reignty  and  of  the  neutral  rights  of  the  United  States. 

The  rule  of  public  law  is  unequivocal  on  this  point, 
and  is  correctly  stated,  as  follows,  by  WoUY: 

''Since  the  right  of  raising  soldiers  is  a  right  of 
majesty,  whicli  must  not  be  violated  by  a  foreign 
nation,  it  is  not  permitted  to  raise  soldiers  on  the 
territory  without  the  consent  of  its  sovereign."  (Jus 
Gentium,  s.  1174.) 

By  Vattel:  '"As  war  cannot  be  carried  on  without 
soldiers,  it  is  evident  that,  whoever  has  the  right  of 
making  war,  has  also  naturally  that  of  raising  troops. 
The  latter,  therefore,  belongs  likewise  to  the  sovereign, 
and  is  one  of  the  prerogatives  of  majesty."  (Vattel, 
Droit  des  Gens,  liv.  3,  ch.  ii,  s.  7.) 


« 


* 


"As  the  right  of  levying  soldiers  belongs  solely  to 
the  nation  or  the  sovereign,  no  person  must  attempt  to 
enlist  soldiers  in  a  foreign  country  without  the  permis- 
sion of  the  sovereign ;  and,  even  with  that  permission, 
none  but  volunteers  are  to  be  enlisted;  for  the  service 
of  their  country  is  out  of  the  question  here,  and  no 
sov^ereign  has  a  right  to  give  or  sell  his  subjects  to 
another. 

"Whoever  undertakes  to  enlist  soldiers  in  a  foreign 
country   without  the  sovereign's  permission,  and,  in 


gener 


•al,  wlioever  onticos  away  the  subjocts  of  another 
state,  violates  one  of  the  most  sacred  rights  of  the 
j)rincc  and  tlie  nation.  This  crime  is  distinguished  by 
the  name  of  kidnapping  or  man-stealing,  and  is  pun- 
ished with  the  utmost  severity  in  every  well-regulated 
state.  Foreign  recruiters  are  hanged  without  mercy, 
and  with  great  justice.  It  is  not  })rcsumed  that  their 
sovereign  has  ordered  them  to  commit  a  crime;  and 
supposing  even  that  they  had  received  such  an  order, 
they  ought  not  to  have  obeyed  it  ;  their  sovereign 
having  no  right  to  command  wliat  is  contrary  to  the  law 
of  nature."  *  *  •"•  "  Dut  if  it  appears  that  they 
acted  by  order,  such  a  proceeding  in  a  foreign  sover- 
eign is  justly  considered  as  an  injury,  and  as  a  sufficient 
cause  for  declaring  war  against  him,  unless  he  makes 
suitable  reparation."     (Ibid.  s.  15.) 

By  Kluber:  "  A  state  entirely  neutral  has  the  right 
to  exact,  even  by  force,  if  necessary,  that  belligerent 
powers  do  not  use  neutral  territory  for  the  purposes  of 
war ;  that  they  take  not  therefrom  munitions  of  war, 
and  provisions  and  other  immediate  requirements  of 
war,  for  their  armies ;  that  tltey  do  not  make  there  any 
militarypreparati'ms,  enrolments  or  collections  of  troops; 
that  none  of  their  troops,  armed  or  unarmed,  pass 
through,  &c.,  &c.  ;  that  they  exercise  there  no  act  of 
hostility  against  the  persons  or  property  of  the  subjects 
of  the  hostile  state ;  that  they  do  not  occupy  it  mili- 
tarily, or  make  it  the  theatre  of  war."  {Droit  des  Gens 
moderne  de  V  Europe,  s.  285.) 

By  G.  F.  de  Martens:  '  Whilst,  in  case  of  rupture 
between  two  nations,  a  neutral  state  preserves  the  full 
enjoyment  of  its  territorial  rights,  it  can,  in  the  absence 
of  treaties,  prohibit  during  the  war,  as  in  time  of  peace. 


\W 


!     i    i| 


^11 


It 


G 

any  passjirro  or  sojouni  of  i\m'\n-n  troops,  iitul  much 
more  lorbirl  tlio  occiiiiation  of  its  fortresses,  the  recruit. 
w(/,  ninstoriji<,^  and  oxcrcisin,!,'  troops;  and  it  may  use 
Ibrco  ao-ainst  those;  wiio  shall  attempt  to  violate  the  pro- 
hibition."    (Precis  du  Droit  des  Gens,  s,  350.) 

By  Galiani:  "All  ^governments  are  accustomed  to 
Ibrhid,  under  capital  penalty,  any  foreigner  to  make 
niditary  enfragements  or  recruits  within  their  territory  ; 
in  doinrr  which  they  do  no  more  than  to  sustain  and 
defend  a  mitural  right,  and  one  inherent  in  every  sov- 
ereignty.    ■•'     ■"■ 

"  The  neutral  sovereign,  who  leaves  his  subjects  at 
liberty  to  engage  themselves  in  the  service  of  a'lbreign 
belligerent,  will  not  therein  be  wanting  to  his  neutml 
duties,  provided  it  has  been  customar^r  with  his  nation; 
if  It  has  been    usual  in  time   of  peace;  if  it   accords 
with  the  physical  and  political  condition  of  the  country; 
if,  in  fine,  he  i)ractices  indill'erence  and  impartiality, 
not  denying  to  one  belligerent  what  he  concedes  to  the 
other.     But  if  a  sovereign  has  not  been  accustomed  to 
allow  his  subjects  to  enlist  in  the  military  or  naval  ser- 
vice of  other  governments,  it  may  well  be  doubted 
whether  he  may,  Ibr  the  first  time,  do  it  on  the  occur- 
rence of  war  between  two  states,  each  of  which  is  in 
amity  with  him.     1  am  not  prepared  to  say  that  in  so 
doing  he  gives  ecpudity  of  advantage  and  'facilities  to 
both;    there  might  be  inequality  in  the  need  of  the 
belligerents;  for  perhaps  otw  of  them,  sufcrincj  from 
dejiciency  of  men,  luoiild  derive  precious  and  poicerful 
succor  from  such  permission,  while  to  the  other  it  ivouhl 
he  useless  and  superfluous.     In  my  opinion,  therefore, 
this  question  comes  within  the  general  rule  of  essential 
neutral  duties:  that  is,  to  continue  in  the  anterior  con- 
dition, it  being  lawful  to  persevere  in  what  has  been 


usual,  hut   unlawl'ul   to    inuovato."      {Dei   hoveri  </e 
Principi  Neulrali,  p.  :j2r»,  :{27,  .'{2!).) 

By  Hautc'CcuillL' :  "  TIk;  duties  of  hcllif^orotitH  may  bo 
summed  up  in  very  {ii\w  words.  Tlu!  li(illi<-(.re„t  ou<,dit 
to  abstain  iVom  the  eniploynicMt  of  all  such  indirect 
means  to  molest  his  enemy  as,  in  the  accomplishment 
of  their  object,  would  first  injuriously  nllect  a  neutral 
nation.  Jb;  ou«^ht  to  respect,  in  tin;  most  (;o(ni)lctoand 
absolute  nnmner,  the  indcjjendem.'c  and  soverei^-nty  of 
nations  at  peace;  in  a  word,  he  ou<;ht  to  treat  them  in 
the  same  nuinner  as  if  the  most  profound  peace  con- 
tinued to  prevail.  'I'iiose  nations,  in  fact,  are  at  peace 
with  him,  lullillin<,'  strictly  their  duties  of  neutrality; 
tlu'y  have  the  ri<^ht  ic  enjoy  the  advaiita^^es  of  their 
])Osition,  and  to  l)e  exempt  from  all  the  evils  of  war; 
the  duty  ol'  the  belli<;erent  is  to  al;stain  from  the  in- 
fringement of  this  right.  Thus  neutral  territory  ought 
to  be  held  sacred  and  inviolable  by  nations  at  war; 
these  last  ought  not,  on  any  i)retext,  iKjr  in  any  man- 
ner, to  make  use  of  such  territory  to  subserve  their 
purposes  of  hostilities,  directly  or  indirectly.  The  j»as- 
sage  of  armed  troops,  the  lcvi/iN(/  of  eolf/kt\s,  &c.,  &c., 
without  the  consent  of  the  sovei-eign,  would  constitute 
an  oHence  against  tlie  sovereignty  (jf  the  neutral,  and  a 
violation  of  the  duty  of  the  beiligerent.''  (Droits  et 
Devoirs  des  Nations  Neutres,  torn,  i,  WVl,  olW.) 

"As  to  the  territory  of  neutral  luitions,  the  occurrence 
of  hostilities  makes  no  change  noi-  niodilication  of  their 
rights:  they  remain  inviolal)le  as  in  time  of  ])eace. 
Their  territory  ought,  then,  to  be  sheltered  from  all 
enterprises  of  the  belligerents,  of  whatever  nature  they 
may  be.  The  coi:se(|uences  of  war  ought  never  to  be 
felt  by  them  directly  ;  that  is  to  say,  no  act  of  hostility 
should  be  committed  against  them,  under  any  pretext. 


'  I 


s  r 


m 


8 

"nelliprcront  imtioii.s,  in  tliis  rospoct,  liiiv*!  only  the 
rights  tlioy  ixwsesscfl  in  time  of  poiico,  Ixicauso  war 
never  injurifnisly  jilVects  nation.s  iit  peace,  belligerents 
cannot,  then,  in  any  case,  without  the  perniisnon  of  tbo 
sovereign,  use  neutral  territory,  I  do  not  say  directly, 
for  the  operations  of  war;  hut  cannot  even  tnake  use 
of  it  for  any  advantage  whatever,  to  the  prejudice  of 
their  enemy.  This  pcrnuvsion  cannot  be  granted  to 
them  by  the  neutral  without  violating  his  duties. 

"The  principle  of  the  inviolability  of  the  territory 
being  admitted,  the  conclusion,  as  absolute  as  the  prin- 
ciple itself,  follows:  that  a  belligerent  has  no  right  to 
use  neutral  territory,  in  any  manner  whatever,  without 
the  permission  of  the  neutral  nation,  sovereign  of  such 
territory ;  and  cannot,  therefore,  levy  troops  there,  and 
march  armies  through  it,  &c.,  without  this  permission. 
"The  neutral  has  the  incontestable  right  to  resist 
every  attempt  the  belligerent  may  make  to  use  his 
territory;  to  oppose  it  by  all  the  means  in  his  power, 
and  even  by  force  of  arms,  in  the  same  numner  as  a 
citizen  has  the  right  to  defend  his  property  by  all  the 
means  placed  at  his  disposal  by  the  law  to  which  he  is 
subject."     {Ibid.,  tom.  ii,  p[).  48,  49.) 

I  do  not  perceive  that  this  doctrine  is  explicitly  pro- 
duced ill  any  one  of  the  books  of  international  law 
published  during  the  last  few  years  in  (Jreat  Britain. 
Possibly  their  silence  on  this  point  may  be  caused  by 
the  policy  of  their  country,  which,  under  the  kings  of 
the  house  of  Hanover,  has  fre([ueiitly  relied  upon  tbr- 
eign  recruits  in  time  of  war.  However  this  may  be, 
some  of  the  English  works  referred  to  recognise  the 
right  of  every  sovereignty  to  the  exclusive  use  of  its 
own  territory  and  resources,  (Wildinan's  International 
Law,  vol.  i,  p.  64,)  but  without  adverting  to  the  present 


u 


hvjrmil  conseriunnco  of  this  rip^lil; ;  nltliouf^Mi  ono  of  thorn 
(liscuHscs  I'lilly  th(;  colhitoml  ((iiostion,  wh<'th(M-  ii  stiit(» 
l(),s(!s  its  iioiitriility  by  ))i'niiittiti<^  r()roi«,Mi  levies,  and 
coiK'Imlcs,  properly,  that  if  it  bo  permitted  to  ono,  it 
shoidd  be  perrnitte(l  to  each,  ot  the;  respective  belli^re- 
rent  powers.     (Mainiiii^'s  Law  of  Nations,  [)k.  iii,  ch.l.) 

in  this  eonnexion  the  same  aci-redited  English  writer 
considers  and  confutis  the  assuni[)tion,  crudely  and 
erroneously  taken  up  in  (Jreat  Britain,  that  some  doc- 
trine to  the  contrary  of  this  is  lo  be  found  in  Vattel ; 
and,  upon  an  elaborate  review  of  the  whole  subject,  ho 
concludes  thus  : 

"Forei<r|,  levies  may  not  bo  allowed  to  ono  beilioe- 
rent,  while  refused  to  his  anta^i,'onist,  consistently  v/ith 
the  duties  of  neutrality,  '\\1ion  treaties,  antecedent  to 
war,  permit  such  exclusive  ])rivihHn,',  theii  *  *  no 
complaint  of  breach  of  neutrality  can  be  maintained  by 
the  excluded  party.  IJut,  when  no  antecedent  treaty 
exists,  such  a  permission  would  bo  n  violation  of  neu- 
trality, the  princii)les  of  which  demand  the  strictest 
abstinence  from  assistance  to  eitlier  party,  and,  of  course, 
will  not  admit  that  exclusive  privileges,  in  so  important 
a  particular,  shoidc'  be  -■•ranted  to  ono  beliigeront.  Nor 
have  the  customs  of  J'Jurope,  derived  from  the  prac- 
tices of  the  middle  ages,  established  any  usage  that  pre- 
vents this  question  from  being  settled  in  accordance 
with  the  dictates  of  reason,  or,  in  other  words,  with 
the  law  of  nature."     (Manning,  ibid.^  p.  180.) 

Mr.  Matming  s  reasoning  is  conclusive  so  far  as  it 
goes.  Ami  the  imperfection  of  other  English  law  books 
in  this  respect  is  of  no  account,  as  against  the  general 
authority  of  the  expounders  of  international  law  in  all 
the  rest  of  Christendom. 
B.  11.— 2 


i  i  I 


!        M 


ift- 


I  - 


A 


10 


.Misconstruction  has  calso  boon  placed  on  t]:o  fact  that 
Bynkcrslioek  maintains  tlio  ri^lit  of*  private  or  volan- 
tary  expatriatit)n,  even  for  the  purpose  of  ibreign  mili- 
tary service.  But  ho  does  not  express  nor  countenance 
the  thought  that  a  Ibreign  belligerent  may  recruit  sol- 
diers in  a  neutral  country  witliout  the  consent  of  its 
sovereign.  On  the  contrary,  ho  exhibits  in  full  tlio 
legislation  of  the  !'•  •\.vl  iVovinces,  according  to  which 
it  was  a  capital  oHence  to  make  enlistments  in  tl'o 
country  vvdtnout  consent  of  the  States  (Jeneral.  (  Quct'sf. 
J/ir.  Pnl)U<u\  lib.  i,  c.  Tl.) 

Besides,  Great  Britain  has,  in  her  own  legislation, 
sanctioned  i'-  J  adopted  the  rule  of  public  "law,  by 
enacting  that  if  any  person  wdiatcver,  within  the  United 
Kingdom,  or  in  any  part  of  the  dominions  of  Great 
Britain,  shall  hire,  engage,  retain,  or  procure,  or  shall 
attejnpt  or  endeavor  to  hire,  retain,  engage  or  procure 
any  person  whatever  to  enlist,  or  to  enter  or  engage  to 
enlist,  as  an  ollicer,  soldier,  sailor,  or  marine,  eitlier  on 
land  or  sea  service,  for  or  nnder  or  in  aid  of  any  foreign 
prince  or  government,  or  to  go  or  to  agree  to  go  or 
embark  from  any  place  in  the  British  dominions  for  the 
purpose  or  with  the  intent  to  be  so  enlisted,  entered,  or 
engaged  as  aibresaid,  eveiy  person  so  oll'en.ding  shall 
be  deemed  guilty  of  a  misdemeanor,  punishable  by  line 
or  imprisonment,  at  the  discretion  of  the  court  having 
jurisdiction  of  the  act.     (Act  of  59  Geo.  Ill,  di.  m.) 

\s\\  in  the  United  States,  acting  in  the  sense  of 
natural  I'ight,  and  following  the  rules  of  public  law  as 
explained  by  the  jurists  of  continental  Europe,  asserted 
and  established  this  doctrine  at  a  very  early  period,  in 
opposition  ^o  the  undertaking  of  the  French  govern- 
ment, through  its  minister,  .AI.  Genet,  to  man  or  ecptip 
cruisers  within  the  United  States.     (Mr.  Jefferson  to 


11 

31.  Genet,  June  17, 1793.     American  State  Pancrs.  For. 
Air.,  vol.  i,  p.  154.) 

And  our  judicial  text-Looks  are  full  and  explicit  on 
the  same  point.  (Wlieaton  hy  Lawrence,  p.  498; 
Kent's  Com,  lee.  G.) 

It  is  obvious  to  tlie  most  sui)erricial  reflection,  that 
no  distinction  of  principle  exists  in  the  levy  of  a  mili- 
taiy  force  in  the  neutral  country,  as  between  the  land 
and  sea  service;  and  if  (ireat  liritain  may  raise  within 
the  United  States  volunteers  i  )r  her  huul  service,  so 
Russia  may  raise  them  for  iier  marine  service,  that  L, 
may  lit  out  privateers  in  our  i)orfs;  and,  inrleJd  if  we 
grant  or  permit  the  former  privilocro  to  Great  Britain, 
we  must,  m  like  manner,  in  order  to  l)e  impartially 
neutral,  concede  the  latter  privilege  tc  Russia. 

And  it  is  equally  obvious  that  foreign  recruitino- 
must  not  be  forbidden  or  permitted  under  the  inlluence 
(.1  any  assumed  national  .sympathies  or  antipathies 
Individual  or  national  preferences  are  quite  immaterial 
m  such  a  question.  The  United  States  cannot,  either 
lawIuUy  or  honorably,  practice  a  simulated  neutrality- 
nor  can  a  dissembled  alliance  be  claimed  or  expected 
irom  us,  cither  by  Great  Britain  or  by  Russia 

From  the  well-established  rules  and"  principles  of  law 
then,  it  is  plain  to  conclude:  ' 

1.  The  acts  of  enlistment  in  question  are  contrary  to 
the  municipal  law  of  this  country,  and  indictable  as  a 
Jngii  misdemeanor. 

1'.  Those  acts,  if  permitted  to  one  belligerent,  must 
be  permitted  to  all,  in  observance  of  impartial  neu- 
trality. 

3.  Being  against  law  in  the  United  States,  and  there- 
ore  not  permitted  to  Great  Britain,  if  undertaken  l)v 
iH  r  as  a  government,  they  all'ord  just  cause  of  war 


I  ', 


*V,' 


*1         I: 


;if; 


J  '' 


12 

being  direct  national  violation  of  the  territorial  sover- 
eignty of  one  nation  by  another. 

4.  Whatever  agents  of  the  British  government, 
whether  official  or  nnofiicial,  acting  voluntarily  or  by 
orders,  have  participated  in  such  acts,  are  not  only 
guilty  of  a  criminal  infraction  of  the  statute  law,  but 
also,  in  the  language  of  Vattel,  of  violating  one  of  the 
most  sacred  rights  of  the  nation. 

1  presume  that  if,  in  the  present  case,  the  British 
minister  imagines  that  the  acts  performed  under  his 
direction  were  not  contrary  to  the  municipal  law,  it 
must  be  on  the  ground  that  the  recruits  were  not  com- 
pletely enlisted  in  the  United  States ;  that  is,  did  not 
here  in  all  form  enter  the  military  service  of  Great 
Britain.  That  assumption  is  altogether  fiillacious.  The 
statute  is  express,  tliat  if  any  person  shall  hire  or  retain 
another  person  to  go  heijond  the  limits  or  jurisdiction  of 
the  United  States,  ivt'fk  intent  to  be  enlisted  or  entered 
into  the  service  of  any  foreign  state,  he  shall  be  deemed 
guilty  of  the  defined  misdemeanor. 

It  is  possible,  also,  that  he  may  have  supposed  that  a 
solemn  contract  of  hiring  in  the  United  States  is  neces- 
sary to  constitute  the  offence.  That  Avould  be  mere 
delusion.  The  words  of  the  statute  are  "  hire  or  re- 
tain." It  is  true,  our  act  of  Congress  does  not  expressly 
say,  as  the  British  act  of  Parliament  does,  "  whether 
any  enlistment  money,  pay,  or  reward  shall  have  been 
given  and  received  or  not,"  (Act  59  Geo.  Ill,  ch.  09, 
s.  2;)  nor  wa::-  it  necessary  to  insert  these  words.  A 
party  may  be  retained  by  verbal  promise,  or  by  invita- 
tion, for  a  declared  or  known  purpose.  If  such  a  statute 
could  be  evaded  or  set  at  nauglit  by  elaborate  contri- 
vances to  engage  without  enlisting,  to  retain  without 
hiring,  lo  invite  without   recruiting,  to  pay  recruiting 


13 

money  in  fact,  but  under  another  name  of  board,  pass- 
a<^e  money,  expenses,  or  the  like,  it  would  be  idle  to 
pass  acts  of  Congress  for  the  punishment  of  this  or  any 
other  offence. 

However  this  may  be,  and  if  such  were  the  thought 
of  the  British  government,  it  has  not  been  successfully 
carried  out;  for,  on  the  evidence  before  me,  including 
the  general  instructions  of  the  British  minister  and  his 
direct  correspondence  with  recruiting  officers  in  the 
United  States  and  others,  my  opinion  is  positive,  that 
the  parties  have  made  themselves  amenable  to  the 
penalties  of  the  statute,  and  may  be  convicted  before 
any  competent  court  of  the  United  States. 

It  is  farther  to  be  observed,  in  conclusion  of  this 
branch  of  the  subject,  that,  whether  the  acts  of  the 
British  minister  and  his  agents,  in  recruiting  troops 
witliin  the  United  States,  do  or  do  not  come  within  the 
technical  provisions  of  the  act  of  Congress,  is  altogether 
immaterial  to  the  question  of  international  right,  as 
between  this  government  and  that  of  Great  Britain.  If, 
by  ingenious  evasions  of  the  letter  of  a  penal  statute 
intended  only  for  private  malefactors,  the  British  gov- 
ernment should,  nevertheless,  levy  troops  here,  the  fact 
of  the  statute  being  thus  defeated  and  trampled  under 
foot  would  serve  only  to  augment  the  public  wrong. 

Suppose,  for  instance,  that  the  British  government 
shall  have  said  to  its  ollicers,  civil  or  military,  in  the 
British  North  American  provinces,  and  to  its  diploma- 
tic or  consular  agents  in  the  United  States:  "You 
will  proceed  to  raise  so  many  men  in  the  United 
States ;  but  remember  that  to  do  so  is  forbidden  by 
the  municipal  law  of  that  country,  and  is  indictable  as 
a  misdemeanor;  you  will,  therefore,  take  care  to  pro- 
ceed cunningly  in  this,  so  as  not  to  incur  the  penalties 


I       i 


14 

of  tlio  statute."     Such  instructions,  while  they  miglit 
have  the  eiFect  of  raising  the  troops,  as  desired  by  the 
British  government,  without  its  agents  incurring  the 
penalties  of  the  statute,  would  but  constitute  a  more 
flagrant   and    aggravated    violation  *  of    the   national 
dignity  and  the  sovereign  rights  of  the  United  States. 
In  truth,  the  statute  in  this  matter  is  of  but  secon- 
dary account.     The  main  consideration  is  the  sovereign 
right  of  the  United  States  to  exercise  complete  and 
exclusive  jurisdiction  within  their  own  territory;  to 
remain  strictly  neutral,  if  they  please,  in  the  face  of  the 
warring  nations  of  Europe ;  and  of  course  not  to  tolerate 
enlistments  in  the  country  uy  either  of  belligerents, 
Avhether  for  land  or  sea  service.     W  there   be  local 
statutes  to  punish  the  agents  or  parties  to  such  enlist- 
ments, it  is  well;  but  that  is  a  domestic  question  for 
our  consideration,  and  does  not   regard  any  forei"-n 
government.     All  which  it  concerns  a  foreign  govern- 
ment to  know  is,  whether  we,  as  a  government,  permit 
such  enlistments.     It  is  bound  to  ask  permission  of  us 
before  coming  into  our  territory  to  raise  troops  for  its 
own  service.     It  has  no  business  to  inquire  whether 
there  be  statutes  on  the  subject  or  not.     Least  of  all 
has  it  the  right  to  take  notice  of  the  statutes  only  to  see 
how  it  may    revise  means    by  which  to  evade  them. 
Instead  of  this,  it   is  bound,  not   only  by   every  con- 
sideration of  international  comity,  but  of  the  strictest 
international  law,  to  respect  the  sovereignty  and  rec>-ard 
the  public  policy  of  the  United  States. 

Accordingly,  when,  at  the  commencement  of  the 
great  European  struggle  between  England  and  France, 
near  the  close  of  the  last  century,  the  French  Conven- 
tion assumed  to  recruit  marine  forces  in  the  United 
States,  it  was  held  by  President  Washington,  and  by 


15 


Ins  Secretary  of  State,  Mr.  Jefferson,  as  explained  in 
the  correspondence  liereinbelbre  quoted,  that  by  the 
law  of  nations,  in  virtue  of  our  soverei,i,nity,  and  with 
out  stoppincr  to  enact  municipal  laws  on  the  subject, 
we  had  full  right  to  repress  and  repel  forei^rn  eiUist- 
nients,  and,  e  converso,  that  the  attempt  to  make  any 
:sach  enlistments  was  an  act  of  gross  national  aggres- 
sion on  the  United  States. 

When  a  foreign  government,  by  its  agents,  enters 
mto  the  United  States  to  perform  acts  in  violation  of 
our  sovereignty,  and  contrary  to  our  public  policy, 
though  acts  not  made  penal  by  municipal  law,  that  is  a 
grave  national  indignity  and  wrong.  If,  in  addition 
to  this,  such  foreign  government,  knowing  that  ])enal 
statutes  on  the  subject  exist,  deliberately  undertakes  to 
evade  the  municipal  law,  and  thus  to  bailie  and  bring 
into  disrepute  the  internal  administration  of  the  country^ 
in  such  case  the  foreign  government  not  only  violates 
but  in  iults  our  national  sovereignty. 

1  repeat,  then,  that,  if  it  were  to  be  supposed  that  the 
British  government  had  so  far  forgotten  what  is  due  to 
Its  own  dignity,  as  to  instruct  its  agents  within  the  ter- 
ritories of  the  German  Bund,  in  the  Netherlands,  in  the 
I  lilted  States,  to  enlist  recruits  without  respect  for 
local  sovereignty,  but  with  care  to  avoid  or  evade  the 
letter  of  local  statutes,   instead  of  diminishing,   that 
would  aggravate  the  injustice  and  illegality  of  tbe  pro- 
ceeding in  the  eye  of  the  law  of  nations,  and  the  inten- 
sity of  the  public  wrong  as  regards  the  neutral  states 
thus  converted,  without  their  consent,  into  a  recruiting 
ground  for  the  armies  of  Great  Britain. 

Such  instructions  would  be  derogatory  to  our  public 
honor  in  another  respect.  They  p.  ,  i.me  that  the 
bnited  States,  without  becoming  the  open  ally  of  Great 


!    .•! 


!    I 


i 


1  < 


riti" 


Mt. 


16 


Britain,  will,  by  conniving  at  the  use  of  their  territory 
for  belligerent  purposes,  while  professing  neutrality, 
thus  carry  on,  as  already  intimated,  a  dishonorable  war 
in  disguise  against  Russia. 

It  appears,  however,  that  the  British  government, 
finding  it  impossible  to  keep  the  ranks  of  its  army 
filled  by  voluntary  enlistments,  and  being  loth  to  en- 
counter the  responsibility  of  a  law  for  conscripton,  for 
draughts  on  militia,  for  periodical  service  of  its  able- 
bodied  men,  or  for  any  other  systematic  method  of 
raising  troops  from  its  own  population,  introduced  into 
Parliament  a  bill  entitled  "An  act  to  permit  foreigners 
to  be  enlisted,  and  to  serve  as  officers  and  soldiers  in 
her  Mnjesty's  forces,"  but  which  was  in  fact  a  bill  to 
authorize  the  government  to  employ  agents  to  carry  on 
recruiting  service  in  the  neutral  states  of  Europe  and 
America. 

The  law  was  earnestly  objected  to  in  its  progress,  as 
insulting  to  neutral  states  and  derogatory  to  the  na- 
tional dignity,  but  was  passed,  nevertheless,  on  the  22d 
of  December,  1834.  (Hansard's  Debates,  third  series, 
vol.  13 G,  passim.) 

At  any  early  day  after  the  passage  of  this  act,  meas- 
ures Avere  taken  to  recruit  ollicers  and  men,  for  a  pro- 
posed foreign  legion,  in  the  United  States,  those  meas- 
ures being  publicly  pursued  under  the  oflicial  responsi- 
bility of  Sir  Gaspard  le  Marchant,  lieutenant  governor 
of  the  province  of  Novn  Scotia.  A  military  depot  was 
established  at  Halifax  for  the  reception  and  enrolment 
of  recruits;  and  Mr.  Ilowe,  a  member  of  the  provincial 
government,  with  other  agents,  came  into  the  United 
Slates  to  make  arrangements  for  engaging  and  forward- 
ing tlio  recruits,  chiefly  from  Boston,  New  York,  and 
rhiladelphia.      Subsecpiently,  corresponding  arrange- 


17 

ments  were  made  for  collecting  and  forwarding  remiita 
from  the  western  States,  by  Buffalo  or  Niagara,  throu-h 
Upper  Canada.  ° 

These  acts  were  commenced  and  prosecuted  with 
printed  handbills  and  other  means  of  advertisement 
and  recruits  were  collected  in  depots  at  New  York  and 
elsewhere,  and  regularly  transported  to  Canada  or  Nova 
Scotia,  with  undisguised  notoriety,  as  if  the  United 
States  were  still  a  constituent  part  of  the  British  em- 
pire. Of  course,  they  attracted  great  attention,  and  the 
various  measures,  whether  legal  or  political,  proper  to 
put  a  stop  to  them,  were  instituted  by  your  direction 
through  the  instrumentality  of  the  foreign  or  legal  de' 
partments  of  the  government  of  the  United  States. 

In  the  course  of  the  investigations  which  ensued 
among  the  fiicts  brought  to  light  are  some,  in  the  docu- 
ments referred  to  me,  which  unequivocally  implicate 
not  only  British  consuls,  but  the  British  minister  him^ 
self,  in  the  unlawful  transactions  in  question,  and  so  call 
lor  inquiry  as  to  the  rights  of  this  government  in  refer- 
ence to  them  and  their  government. 

In  the  application  of  the  general  rules  of  law  to  the 
off'  -ices  committed,  it  is  necessary  to  distinguish 
between  the  case  of  any  of  the  consuls  and  that  of  the 
minister. 

The  several  district  attorneys  of  the  United  States 
within  whose  jurisdiction,  respectively,  the  cases  oc- 
curred, very  properly  assumed  that  the  consuls  were 
subject  to  indictment  for  infraction  of  the  municipal 
law,  and  have  proceeded  accordingly,  prosecutions 
having  already  been  instituted  in  the  southern  district 
of  Ohio  against  the  consul  at  Cincinnati,  and  in  the 
southern  district  of  New  York  against  an  officer  of  the 
consulate  of  New  York 


^1 


"t,  I 


Ml 


{ '■ 


I 


Fr 


18 


Nothing  is  better  settled  by  adjudication  in  this 
country,  than  tliat  foreign  consids  are  subject  to  crimi- 
nal process  for  violation  of  the  municipal  laws.  (United 
States  i;.9.  Ravara,  ii  Dall.,  207;  Mamduirdt  m  Soder- 
Strom,  i  Bin.,  144;  Commonwealth  ?\9  KosloH',  i  8erg. 
and  li.,  545;  State  vs.  De  hi  Foret,  ii  Nott  and  Mc, 
217.) 

Ihcse  adjudications  are  in  e.^act  conformity  with  the 
law  of  nations  in  regard  to  consuls,  as  understood  and 
practised  not  less  in  Great  Britain  than  in  the  other 
states  of  Christendom.  (Sec  Opinion,  November  4, 
1854,  MSS.;  also,  Kent's  Com.,  vol.  i,p.  44;  Wheaton's 
El.  by  Lawrence,  305.) 

The  only  privilege,  which  a  consul  enjoys  in  this 
respect,  in  the  United  States,  is  that  awarded  to  him  by 
the  constitution,  of  being  tried  by  the  federal  courts : 
the  effect  of  which  is,  that  his  case  remains  within  the 
control  of  the  general  government,  Avhicli  may  deal 
with  it  according  to  the  convenience  or  the  exigencies 
of  its  foreign  policy,  without  imi)cdiment  from  the 
authority  of  any  of  the  individual  States  of  the  Union. 
(Const.,  art.  iii,  sec.  2;  act  of  September  24,  1 789,  sec. 
0,  i  Stat,  at  Large,  p.  77.) 

The  consul  at  Cincinnati,  as  appears  by  the  legal  ])ro- 
ceedings  there,  snpposcs  that  ho  is  entitled  to  the 
benelits  of  certain  peculiar  stipulations  in  the  consular 
convention  between  the  United  States  and  France,  of 
February  23,  1853.  If  it  were  so,  that  would  not  serve 
him  on  the  main  point,  because  it  does  not  exempt  con- 
suls from  the  criminal  jurisdiction  of  either  of  the  con- 
tracting governments.  But  this  convention  has  no 
application  whatever  to  the  consular  relations  of  Great 
Britain  and  the  United  States.  Whether  it  applies  or 
not  to  governments  with  which  we  have  entered  into 


19 


stii)iiliitions  to  i>liic'o  our  respective  consuls  on  the  ibot- 
111-  of  the  most  favored  nation,  is  a  question  as  yet  suh 
lite.     But  there  is  no  stipuliition  of  tliat  nature  in  exist- 
ence, as  between  (Jreat    Hritain  and  the  United  States 
Of  course,  the  duties  and  the  ri-hts  of  American  con- 
suls m  Creat  JJritain,   and  of  liritish  consuls  in  the 
United  States,  stand  upon  the  law  of  nations,  except  as 
the  same  is  modified  by  their  treaties,  and  by  the  local 
law  of  cither  country.     The  local  law  of  each,  as  avo 
have  seen,  withholds  from  consuls  the  diplomatic  privi- 
lege of  exterritoriality      A  British  consul,  therefore, 
has  no  just  cause  of  complaint,  if,  when  charged  with 
iui  olfence,  he  is  held  amenable  to  the  criminal  juris- 
diction of  the  United  States. 

In  addition  to  those  ordinary  means  of  redress  in  the 
case  of  the  misconduct  ofa  foreign  consul,  is  thatafltbrded 
))y  the  law  of  nations.  The  Presid(mt  of  the  United 
States  has  the  undoubted  power,  in  his  discretion,  to 
withdraw  the  exequatur  of  any  foreign  consul.  To  jus- 
tify the  exercisf^  of  this  power,  he  does  not  need  the 
fact  of  r„  technical  violation  of  a  law  judicially  proved, 
lie  may  exercise  it  for  any  reasonable  cause,  whenever' 
ill  his  judgment,  it  is  called  for  l)y  the  interests  or  the 
honor  of  the  United  States.  (De  Clercq,  Gitide  des 
Consulats,  p.  101.) 

On  each  of  these  points  provision  was  made  in  the 
commercial  convention  between  the  United  States  and 
Creat  Britain  of  July  3d  1815,  which  stipulates  that 
"  before  any  consul  (in  either  country)  shall  act  as  such, 
ho  shall,  in  the  usual  form,  be  approved  and  admitted  by 
the  government  to  which  he  is  sent;  and,  ''  *  in  case  of 
illegal  or  improper  conduct  towards  the  laws  of  the  gov- 
mimcnt  of  the  country  to  which  ho  is  sent,  such  consul 
may  either  be  punished  according  to  law,  if  the  law 


^; 


I    ' 


f 


i 


20 


will  reach  the  case,  or  be  sent  back  ;  the  oHoiKlcd  ^gov- 
ernment assigiung  to  the  other  the  reasons  ibr  the  same." 
(Art.  iv.) 

This  convention,  by  its  terms,  was  to  subsist  only  four 
years.  By  a  subsotiuent  convention,  that  of  October 
20th,  1S1(S,  its  duration  was  prorogued  ton  years,  (art. 
iv;)  and  afterwards,  by  the  convcMition  of  August  (Jtli, 
1827,  for  another  ten  years,  and  until  denounced  by 
either  party  on  twelve  months'  notice. 

For  the  rest,  the  stipulations  of  the  convention  of 
1815,  as  continued  by  the  conventions  of  1818  and  1827, 
are  but  declaratory  of  the  law  of  nations,  as  that  is  un- 
derstood both  in  Great  Britain  and  the  United  States. 

In  regard  to  the  minister,  it  is  clear,  if  he  violate 
the  laws  of  the  government  to  which  he  is  accredited, 
or  otherwise  olfend  its  sovereignty,  there  is  no  remedy 
except  in  the  m.mner  and  form  prescribed  by  the  law 
of  nations.  lie  enjoys  an  exemption  from  judicial  pro- 
cess, which  immunity  is  not  so  much  his  right  as  that 
of  his  government. 

It  was  formerly  held  in  England,  as  we  see  in  March's 
case,  reported  by  Rolle,  in  the  time  of  James  I,  that, 
"  although  an  ambassador  is  privileged  by  the  law  of 
nature  and  of  nations,  yet,  if  he  commit  any  offence 
against  the  law  of  nature  or  reason,  he  shall  loose  his 
privilege,  but  not  if  he  ollbnd  against  a  positive  law  of 
any  realm."  (Rolle's  R.,  p.  175.)  No  such  distinction 
between  mala  2>ro1ubita  and  mala  in  se,  as  respects  am- 
bassadors, is  now  admitted;  and  their  exterritoriality  is 
the  unanimous  doctrineof  all  publicists,  and  is  recognised 
in  England,  as  it  is  in  the  United  States,  by  statute. 

The  whole  question  is  learnedly  discussed  by  Wild- 
man,  whose  views  are  in  accordance  with  those  of 
Grotius  and  Bynkershoek,  which  now  prevail  through- 
out Ciiri^-tendom.     (institutes,  vol.  i,  p.  !M)  ) 


21 


IJiit  t\u)  privilo<,'o  of  exterritoriality  is  not  conferred 


on  II  public  minister  an  a  Hlii(;l(l  to  crime.      h 


or 


any 


ay  commit,  the  remedy  varies  accord- 


crimes,  which  lie  m 

ing  to  the  nature  of  the  case. 

As  to  ollences  a^^ainst  th(?  municipal  law  of  the  coun- 
try, committed  by  a  foreij^ni  minister,  or  other  person 
entitled  to  the  privile^a'  of  diplomatic  exterritoriality, 
we  have  a  statute  which  declares  that  any  writ  or  pro- 
cess against  them,  issued  by  any  court,  is  utterly  null 
and  void.  (Act  of  Aprd  .*](),  17!)U,  sec.  25,  i  Statutes 
at  Large,  p.  117.)  And  this  immunity  of  public  minis- 
ters has  been  the  subject  of  judicial  recognition  in 
several  instances.  (See  United  States  vs.  Hand,  ii 
Wash.  C.  C.  R.,  435 ;  United  States  va.  Liddle,  ibid.,  p. 
205  ;  exparte  Cabrera,  ibid.,  p.  232.  See  also  Wheaton 
by  Lawrence,  p.  284  ;  Kent's  Com.,  vol.  i,  p.  38;  Opin- 
ion of  Mr.  Attorney  General  Lee,  of  July  27,  1797.) 

The  cases  of  criminality  on  the  part  of  a  public  min- 
ister may  be  distinguished  into  the  following  classes : 

1st.  If  the  crime  committed  by  the  minister  alfect 
individuals  only,  (ddicta  prlvata,)  the  government  of 
the  country  is  to  demand  his  recall ;  and  if  his  govern- 
ment refuse  to  recall  him,  the  government  of  the  coun- 
try may  either  expel  him  by  force,  or  bring  him  to 
trial,  as  no  longer  entitled  to  the  immunities  of  a  min- 
ister. (Kluber,  Droit  des  Gens,  sec.  211 ;  Ch.  de  Mar- 
tens, Guide  Diplomatique,  tom.  i,  p.  88.) 

2d.  If  the  crime  allect  the  public  safety  of  the  coun- 
try, its  government  may,  for  urgent  cause,  either  seize 
and  hold  his  person  until  the  danger  be  passed,  or  expel 
him  from  the  country  by  force ;  for  the  safety  of  the 
state,  which  is  superior  to  other  considerations,  is  not 
to  be  perilled  by  overstrained  regard  for  the  privileo-cs 
of  an  ambassador.     (Ibid  ;  see  also  Kent,  vol.  i,  38- 


1'      ill 


22 

schooner  Excliaiip^o  va.  McFad.oii,  vii  Uruncli,  1 1 C,  1 ;{!».) 
Indood,  it  has  bcmi  liold,  in  sticli  a  case,  in  Kti^diuul, 
that  the  olCeiulin^'  party  may  bo  jn-oeeedod  ii;^niinst 
ibr  treason.  "  If,"  it  is  alllrniod  in  the  case  of  Rex  m. 
Owen,  "iin  ambassador  compass  and  intend  death  to 
the  kin^^'s  })orson,  in  the  land  where  ho  is,  ho  may  be 
condemned  and  execnted  for  treason."  (Ilex  vs.  Owen, 
RuUe's  !{.,  p.  18.S.)  Hut  that  dictum  is  not  in  accord 
with  preceth'uts,  whicli,  in  neneral,  <?o  no  further  than  the 

arrest  and  conlinemeni,  and  the  eventual  or  tlieimin(,'diate 
expulsion,  of  a  public  minister,  for  treasonable  acts,  or 
acts  dangerous  to  the  security  of  the  state, 

Signal  instances  of  the  arrest  or  summary  expulsion 
of  public  ministers  in  such  a  case,  are  collected  by 
Bynkershoeic,  by  \Vic([uefort,  by  Wildnnin,  and  by 
Charles  de  ^lartens,  {Causes  Ceh^hrcs.) 

A  very  modern  case  of  great  notoriety  is  that  of  Sir 
Henry  Uulwer,  who,  while  British  minister  at  ^[adrid, 
during  the  administration  of  the  Duke  of  Valencia, 
(General  Narvaez,)  being  detected  in  complicity  with 
domestic  revolutionists,  was  required  by  letter  of  the 
Duke  of  Sotomayor,  the  Spanish  Minister  of  Foreign 
Allairs,  to  ipiit  Spain  immediately,  and  did  so.  (Hernan- 
dez, Esjialia  y  vl  Vlscoiuh  Palmersfon,  iMadrid,  1848.) 

This  incident  occasioned  a  brief  interruption  of  the 
diplomatic  relations  of  the  two  governments;  but  Si)ain 
stood  lirm;  and,  as  Sir  Henry  Bulwer  had  acted  under 
the  instructions  of  Lord  Palmerston,  the  British  Minis- 
ter  of  Foreign  Alfairs,  the  British  government,  alM- 
some  delay,  and  the  exchange  of  explanations,  conscious 
that  it  had  been  placed  in  the  wrong  by  Lord  Palmer- 
ston, submitted  to  send  a  nov/  minister  to  Madrid. 
(Hansard's  ]>.^bntcs,  third  series,  vol.  H!),  ]>.  ;M7. ) 

:5d.  F.-ur  i'j',  r  the  >;i'encc  be  grave,  but  not  such  as  to 


09 

compromise  tlio  piiUlic  safety,  the  course  of  proceed iufr 
in  aoconlance  with  the  law  of  uath^m,  and  snnetiouod 
I'X  (liploiiiatie  usance,  is  to  (lemaiul  the  recall  of  tho 
minister,  and  meanwhile  to  refuse,  or  not,  all  further 
intercourse  with  liim,  accordinrr  to  the  circumstances. 
The  United  States  have  pursued  this  course  in  sev- 
eral instances,  of  which  a  memorable  one,  and  exactly 
pcrtin-iit  to  the  present  case,  is  the  demand  on  Franco 
fur  the  rocjill  of  U.  Genet,  f,^uilty  of  enlistments  in  this 
(■(Hiiitry  without  tho  consent  of  its  {^'overnmcnt.  (Am. 
State  Papers,  For.  All".,  vol.  i,  No.  G5.) 

The  i)ublic  law  and  usaj^'o  in  this  respect  arc  well 
stated  by  a  modern  ]M)<^lish  author,  who  says: 

''  With  respect  to  the  dismissal  of  ministers,  it  is 
usual,  whci-c  the  matter  admits  of  delay,  first  to  de- 
inajid  his  recall.  *  "•  But  this  is  a  mere  act  of  cour- 
tesy, which  cannot  be  expected  on  occasions  of  immi- 
nent peril.  The  dismissal  of  an  ambassador  on  such 
occasions  is  not  an  assumption  of  jurisdiction,  but  a 
measure  of  self-defence,  whicii  no  one  has  over  denied 
to  be  lo.yal  in  the  case  of  ambassadors.  •"'  •-•  If  an 
ambassador  use  force,  he  may  be  repelled  by  force.  *  ^• 
A\'hen  the  danjj^er  is  imminent,  an  ambassador  may  bo 
seized  as  a  public  enemy,  may  be  imprisoned,  may  be 
put  to  death,  if  it  be  indispensably  necessary  to  our 
safety."     (Wildman,  Institutes,  vol.  i,  p.  114.) 

On  the  whole,  tho  case  of  the  British  minister, 
regarded  in  tho  li<-ht  of  established  rules  of  the  law 
of  nations,  and  diplomatic  miv^o  founded  thereon, 
would  seem  to  resolve  itself  into,  first,  a  question  of 
strict  right;  and,  secondly,  of  discretion  in  the  exercise 
that  right. 

It  clearly  is  not  a  case  alfccting  the  security  of  tho 
state,  and  thus  needing  or  justifying  the  interposition 


■■ji 
11, 


i 


ll. 


.j^^^w.^ 


M; 


24 


of  summary  authority,  as  in  the  instance  of  the  Prince 
of  Ccllamaro  in  France,  (Ch.  de  Martens,  Causes  Celc- 
hirs,  torn,  i,  p.  139,)  Count  Gyllenberf]^  in  Great  Britain, 
(Foster's  Crown  Law,  p.  187,)  and  many  other  cases 
of  historical  and  legal  notoriety  or  interest.     No  acts 
of  violence  arc  imputed  to  the  Ih'itish  minister,  nor 
any  purpose  or  act  threatening  to  the  national  stability 
of  the  United  States.     What  is  charged  against  him  is 
conduct  improper  in  a  public  minister,  illegal  as  respects 
the  municipal  law,  injurious  to  the  national  sovereignty. 
If  sullieicntly  shown,  it  requires  to  be  repressed  in  such 
manner  as  eil'ectively  to  vindicate  the  public  honor.    Of 
strict  right,  the  President  may,  as  the  Queen  of  Spain 
did  in  the  case  of  Sir  Ilenry  Bulwer,  send  his  passports 
to  the  British  minister,  with  intimatioii  to  leave  the 
country  without  delay;  or  he  may  well,  in  his  discre- 
tion, adopt  the  milder  course,  as  President  Washington 
did  in  tlie  case  of  ]\I.  Genet,  that  is,  after  allbrding  to 
the  British  minister  opportunity  of  explanation  through 
the  Secretary  of  State,  tlien,  if  his  explanation  be  not 
satisfactory,  to  demand  liis  recall  of  the  Queen's  gov- 
ernment.    The  personal  esteem,  which  the  British  min- 
ister justly  enjoys  here  in  other  respects,  might  counsel 
the  latter  course,  more  especially  if  the  British  gov- 
ernment, assuming  the  responsibility  of  his  acts,  should 
thereupon  proceed  to  tender,  in  its  own  name,  com- 
plete and  ample  satisfaction  for  having  authorized  or 
permitted  such  a  flagrant  wrong,  as  the   systematic 
attempt  to  recruit  a  military  force  in  the  United  States, 
by  the  instrumentality  of  the  lieutenant-governor  of 
Nova  Scotia. 

I  have  the  honor  to  be,  very  respectfully, 

C.  CUSIIING. 
The  President. 


i   ^  ' 


APPENDIX. 


f  ■  'I- 


I 


Attorney  General's  Office, 

Ilarch  23,  1855. 

Sir  :  The  Secretary  of  State  has  referred  to  me  your 
letter  to  him  of  tlie  22(1  instant,  enclosing  a  handbill 
signed  "Angus  McDonald,"  who  proposes  to  recruit 
soldiers  for  the  military  service  of  the  British  govern- 
ment, and  advertises  a  recruiting  station  for  that  ob- 
ject at  a  place  indicated  in  the  city  of  New  York. 

Statements  corroborative  of  this  document  appear 
in  sundry  newspapers  of  New  York. 

It  is  perfectly  clear  that  any  such  enlistment  is  con- 
trary to  law.  The  act  of  Congress  of  April  20,  1818, 
not  only  forbids  military  enlistments  in  the  United 
States,  for  a  purpose  hostile  to  any  country  in  amity 
with  us,  but  also  by  foreign  states  for  any  purpose 
whatever. 

L"  the  troops  recruiting  for  Great  Britain  in  New 
York  are  intended  to  serve  against  Russia,  the  under- 
taking is  in  violation  of  cur  licutrality;  and,  if  not, 
still  It  is  in  violation  of  the  sovereign  authority  of  the 
United  Statjs. 

Not  long  since  the  consul  of  the  ^Me.xican  republic  at 
San  Francisco  was  duly  tried  and  convicted  there  of 
this  precise  oilence,  in  having  enlisted  persons  in  Cali- 
fornia for  the  domestic  service  of  his  government. 

These  views  of  the  present  question  have  been  sub- 

mitted  to  the  President,  and  have  his  approbation;  and 

he  accordingly  has  directed  mo  to  advise  you  at  once, 

lu  order  to  avoid  delay,  and  to  desire  you  to  take  the 
4 


I 

f 


H;i'l 


t  ■ ! 


2U 


|)rop(n-  and  lawful  fitpps,  in  your  discinition,  to  brinj^  to 
j)nnislitnont  all  ])(m\soiih  eiigagiul  in  such  onlistmonts 
witliin  youi-  district. 

I  !uri,  v(;ry  rospoctfully, 

C.  CUSIIING. 

lion.  .loiiN  M(;Ki;()>f, 

f/'nlti'd  iS/(itcn  Ailonu'ij,  New  York. 


Actohnky  Gknkhai,'h  OrproE, 

Septemhvr  12,  1855. 
SiFi:  In  roply  to  your  letter  of  tlu!  lOtli  instant,  on 
llu!  subject  of  the  indictments  j)onding-  a.^ainst  jjorsona 
charged  with  recruiting  for  the  military  service  of 
(Jr(>at  Hrilaiii,  1  have  tlu;  honor  to  make  (he  following 
observations: 

Mr.  McKeon  has  been  advised  of  the  desirableness  of 
conferring  with  you  personally,  either  by  himself  or  his 
assistant,  in  regard  to  new  evidence;  to  which  ho  may 
have  access,  and  which  can  be  us(  I'ul  to  you, 

1  suggev-t  the  exi)ediency  of  trying  oidy  a  part  of 
the  cas<  .s  now,  >.  specially  a  yoti  fail  to  convict  in  some 
leadii  g  case. 

Hut  the  most  imj)ortant  consideration  is  this: 
This  gi)vernment  has,  of  course,  addressed  to  that  of 
Creat  J>ritain  such  demands  of  public  redress  and  satis- 
faction in  the  premises  as  the  national  honor  reipiires. 
IJnt  the  government  of  (h-eat  J?ritain,  with  extraordi- 
nary inattention  to  the  grave  as})cct  of  its  acts,  namely, 
the  llagrant  violation  of  t)ur  sovercugn  rights  involved 
in  them,  has  sup})osed  it  a  suilicicnt  justification  of  what 
it  has  done  to  reply,  that  it  gave  instructions  to  its 
agents  so  to  proceed  as  not  to  infringe  our  municipal 
laws ;  and  it  quotes  the  remark  of  J  udge  Kaue  in  sup- 


27 


111  some 


port  of  tho  idn.i  that  it  has  Ruccoedorl  in  this  purpose. 
It  irijiy  1)0  Ko :  .lud^ro  K,i„o  j^  ,^„  uprifrht  and  intelligent 
judp;,  and  will  pronounee  the  law  as  it  is,  without  fear 
or  favor. 

Hilt  if  the  British  f,'overnrnont  has,  by  inf^enious  con- 
trivances, succe(!ded  in  slielt(!rinf,r  its  ai,rents  from  con- 
viction as  nialefa,ctors,  it  has  in  so  doing  doubled  the 
magiiitude  of  the  national  wrong  inflicted  on  the  United 

States. 

This  government  has  done  its  duty  of  internal  ad- 
ministration, in  prosecuting  the  individuals  engaged  in 
suc-h  acts.  Jf  they  are  acquitted,  by  reason  of'^a  de- 
liberate undertaking  on  the  part  of  the  British  govern- 
ment not  only  to  violate  as  a  nation  our  sovereign  rights 
as  a  nation,  l)ut  also  to  evade  our  municipal  laws,  and 
that  undertaking  shall  be  consummated  by  its  agents  in 
the  Ur.ited  States,  when  all  this  shall  have  been  judi- 
cially ascertained,  the  i^rcsident  will  then  have  before 
liim  the  elements  of  decision  as  to  what  international 
action  it  becomes  the  United  States  to  adopt  in  so  im- 
portant a  matter. 

I  am,  very  respectfully, 

T      n  Ar     T.  G-  GUSHING. 

Jas.  C!.  Van  Dykk,  E.sq., 

United  Slates  Attorney,  Philadelphia. 


IJIM 


!    ll 


i  H 


\ 


Attorney  General's  Office, 

September  17,  1855. 
Sir  :  I  desire  to  make  a  further  suggestion  in  regard 
to  the  trial  of  parties  charged  with  recruiting  soldiers 
in  the  United  States  for  the  service  of  the  British  gov- 
ernment. 

It  is  known  that  instructions  on  this  subject  were 


till 


m. 


28 


given  by  that  government  to  its  officers  in  the  United 
States.  We  are  told  by  Lord  Clarendon  that  those 
officers  had  "  stringent  instructions  "  so  to  proceed  as 
not  to  violate  the  municipal  law;  that  is,  to  violate  its 
spirit,  but  not  its  letter.  If  so,  the  instructions  them- 
selves violate  the  sovereign  rights  of  the  United  States. 

But,  in  the  meantime,  cverv  consul  of  Great  Britain 
in  the  United  States  is,  by  the  avowal  of  his  govern- 
ment, subject  to  the  just  suspicion  of  breach  of  law ; 
while,  apparently,  he  must  either  have  disobeyed  his 
own  government,  or,  in  obeying  it,  have  abused  his 
consular  functions  by  the  violation  of  his  international 
duty  to  the  United  States. 

In  these  circumstances,  it  is  deemed  highly  necessary 
that  the  British  consul  at  Philadelphia,  or  any  other 
officer  of  the  British  government,  shall  not  be  suiFered 
to  interfere  in  the  trials,  as  he  attempted  to  do  on  a 
previous  occasion  ;  that  no  letter  of  his  be  read  except 
in  the  due  form  of  evidence;  and  that  if  he  have  any- 
thing to  say,  he  shall  be  put  on  the  stand  by  the  de- 
fence, in  order  that  he  may  be  fully  cross-examined  by 
the  prosecution. 

It  is  clear  that  he  has  no  right,  by  any  rule  of  public 
law,  or  of  international  comity,  to  be  heard  in  the  case 
by  the  court,  otherwise  than  as  a  witness,  whether  en- 
forced or  volunteer. 

I  have  the  honor  to  be,  ver''"  respectfully, 

C.  GUSHING, 

Jas.  C.  Van  Dyke,  Esq., 

United  States  Attorney,  Philadelphia. 


29 


Attorney  General's  Office, 

Octoher  20,  1865. 

Sir  :  I  have  the  honor  to  acknowledge  the  reception 
of  your  two  communications  of  the  16th  and  17th  in- 
stant, in  which  you  inform  me  of  the  conviction  of 
Joseph  Wagner,  accused  of  the  offence  of  being  en- 
gaged in  unlawfully  recruiting  troops  within  the  United 
States  for  the  service  of  Great  Britain,  and  request  in- 
structions as  to  other  indictments  of  the  same  class  still 
pending  in  your  district. 

These  prosecutions  were  instituted,   primarily,   for 
the  purpose  of  arresting  the  continued  perpetration  of 
acts  derogatory  to  the  sovereignty  and  public  honor, 
and  contrary  to  the  neutral  policy  of  the  United  States! 

The  punishment  of  crime  in  these,  as  in  all  other 
cases  of  infringement  of  statute  provisions,  of  what- 
ever nature,  was  an  object  also,  but  in  these  particular 
cases  a  secondary  one;  for  the  individual  misdemeanor 
of  the  parties  implicated,  whether  they  be  citizens  or 
foreigners,  and  whether  private  or  official  persons,  is 
but  a  minor  incident  of  the  national  indignity  and 
wrong  inflicted  on  this  government  by  the  foreign  gov- 
ernment, in  whose  behalf  and  for  whose  benefit  they 
presume  to  violate  the  laws  of  the  United  States. 

If,  therefore,  you  find  that  what  has  thus  far  been 
done  by  you  so  judiciously  and  successfully  suffices  to 
maintain  the  public  peace  and  vindicate  the  public 
justice  within  your  district,  you  w'l  make  such  disposi- 
tion, as  in  your  discretion  seems  best,  of  the  remainino- 
complaints  against  any  persons,  who,  do  not  hold  an 
official  relation  to  the  British  government. 

As  to  guilty  persons  of  the  latter  description,  whether 
yet  under  prosecution  or  not,  their  criminal  acts  stand 


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W. 


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30 


on  a  clifFerent  ground,  and  additional  instructions  re- 
garding them  will  be  forwarded  to  you  in  due  time. 

Such  persons  are  not  only  indictable,  in  common  with 
all  others  who  violate  the  law  of  the  land,  but  they  are 
also  violators  of  the  international  law,  and  subject  to 
special  consideration  by  the  United  States,  unless  dis- 
avowed and  punished  by  their  own  government. 

I  have  the  honor  to  be,  your  obedient  servant, 

C.  GUSHING. 

Hon.  John  McKeon, 

United  States  Attorney,  New  York. 


istructions  re- 
in due  time. 
1  cummon  with 
3,  but  they  are 
md  subject  to 
;es,  unless  dis- 
3rnment. 
;  servant, 
GUSHING. 


